Appeal No. EAT/1075/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 May 1996

	Before

	HIS HONOUR JUDGE PETER CLARK

	MR A D SCOTT

	MR N D WILLIS

(1) MR C WALKER
(2) MRS L WALKER	APPELLANTS

PAVILION SERVICES LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR T WALKER
(Father)

For the Respondents	MR D H PRESTON
(of Counsel)
Mr A Bliss
SBJ Employment & Safety Services Ltd
4 Copthall House
Station Square
Coventry
CV1 2FL

	JUDGE PETER CLARK:    This is an appeal by Mr Colin Walker and Mrs Louise Walker, née Worthington, his wife, against a decision of the Shrewsbury Industrial Tribunal (Chairman: Mr Leo Blair) entered on 19 August 1994, following three days of hearing on 21, 22 April and 8 August 1994, dismissing their complaints of unfair dismissal against their former employers, Pavilion Services Limited.  Their application for a review of that decision was heard by the same Chairman and one of the two lay members who had sat on the first hearing on 10 and 11 July 1995.  The application was dismissed.

	Full reasons for the review decision were sent to the parties on 15 August 1995, having been signed by the Chairman on 13 July 1995.

	The full hearing of the appeal came on before us today and having carefully considered all the papers in the case we explored the issues arising in the appeal with both parties.

	Following that preliminary discussion the parties entered into negotiations and reached a settlement of their differences.  However, since that compromise involves setting aside the reasoned decisions of the Industrial Tribunal under appeal and bearing in mind the practice regarding allowing appeals by consent adverted to by Mummery J, in J Sainsbury Plc v Moger [1994] ICR 800, we were not prepared to approve the proposed consent order without ourselves considering the basis on which it is said that the Industrial Tribunal fell into error.

	Having done so, we are satisfied that the error of law identified by both parties in the Tribunal's decision is well-founded.

	At paragraph 4(e) of the Industrial Tribunal's full reasons dated 28 September 1994, the Tribunal concluded that there was here no dismissal.  The process of their reasoning is as follows.  On 2 August 1993 both Appellants tendered four weeks' notice of resignation to take effect on 30 August 1993.  On 6 August both Appellants were suspended on full pay as a result of the employer's investigation into various matters.  

	On about 16 August the employer's site manager, Miss Cannell, lifted those suspensions but told the Appellants to leave the site and not return.  They received two weeks' pay in lieu of the balance of their notice.

	The Tribunal took the view that that did not amount to dismissal.  We disagree.  There was no contractual right to make a payment in lieu of notice.  Thus, this case can be distinguished from the majority decision of this Tribunal in Marshall (Cambridge) Ltd v Hamblin [1994] IRLR 260.  The position is covered by the Employment Appeal decision in British Midland Airways Ltd v Lewis [1978] ICR 782.  Further, the Industrial Tribunal's reference to Section 49(3) of The Employment Protection (Consolidation) Act 1978 is nothing to the point.  That provides that nothing in Section 49 shall be taken to prevent either party from waiving his right to notice, or from accepting a payment in lieu of notice.  Here, the Appellants did not waive their right to notice.  Their acceptance of a payment in lieu of the balance of notice which they had given did not prevent a dismissal taking place during that notice period.

	In these circumstances we shall allow the appeal on the limited footing that the Industrial Tribunal was wrong in law in concluding that no dismissal took place on 16 August 1993.

	Consequentially, the parties have agreed that a declaration of unfair dismissal should be made in both cases, and that each Appellant is entitled to compensation limited to their basic award, calculated in accordance with Section 73 of the 1978 Act, and no further compensatory award.

	We are pleased to endorse that agreement, which reflects well on the good sense of both parties, and disposes finally of this long running litigation.

	Accordingly, by consent, the appeal is allowed; we substituted a declaration that both Appellants were unfairly dismissed, and we make a basic award in favour of each Appellant, in the exercise of our powers contained in paragraph 21(1) of Schedule 11 to the 1978 Act.